Does Anybody Really Know What Time It Is? Not If You're Using the Asylum Clock (+ Some Other EAD Updates)

If you're reading this blog, and presumably you are, you probably already know about the "Asylum Clock." The basic story is this: When a person files for asylum (with the Asylum Office or the Immigration Court), the Clock starts to count time. Once the Clock reaches 180 days, the asylum applicant is eligible for an employment authorization document (“EAD”). The Clock “stops” if the asylum applicant causes a delay in her case. The problem is that the rules governing the Asylum Clock are vague, and ever changing. Today, I want to discuss a new change with the Clock, debunk a rumor that has been floating around, and briefly discuss the new EAD application form.

The official Asylum Clock, kept in a secure vault at DHS.

First, a few words about the Asylum Clock. The Clock originally went into effect in 1996. Before then, if a person filed for asylum, she could also apply for an EAD. The powers-that-be (i.e. Congress) felt that this system encouraged frivolous asylum applications--people knew that they could file for asylum, get a work permit, and remain in the U.S. for years while their cases were adjudicated, and so they had an incentive to file for asylum even if they had meritless cases.

To combat this problem (if indeed, it was a problem), Congress created a 180-day waiting period before asylum seekers would become eligible for the EAD (under the regulations, you can file for the EAD after 150 days, but you are not actually eligible to receive the EAD until 180 days have elapsed). The "Asylum Clock" counts this time. In order to avoid the problem of asylum seekers deliberately delaying their cases to obtain an EAD and draw out the process, the law states that any delay by the applicant causes the Clock to stop. It sounds simple, but in practice, it's often been a mess.

EOIR--the Executive Office for Immigration Review--has a handy memo that lists the reasons why the Clock might stop in Immigration Court or at the Asylum Office. According to the memo, the Clock will stop in Immigration Court if (1) the applicant asks for the case to be continued so he or she can get an attorney; (2) the applicant, or his or her attorney, asks for additional time to prepare the case; or (3) the applicant, or his or her attorney, declines an expedited asylum hearing date. At the Asylum Office, the Clock stops if (1) the applicant requests to transfer a case to a new asylum office or interview location, including when the transfer is based on a new address; (2) the applicant requests to reschedule an interview for a later date; (3) the applicant fails to appear at an interview or fingerprint appointment; (4) the applicant fails to provide a competent interpreter at an interview; (5) the applicant is requested to provide additional evidence after an interview (though I have never seen this used as a basis to stop the Clock); or (6) the applicant fails to appear to receive and acknowledge an asylum decision in person (if required). Other--unspecified--delays can also cause the Clock to stop in the Asylum Office or in Court.

Also, the Clock sometimes stops for random and unpredictable reasons: In court, different Immigration Judges interpret the rules differently and inconsistently, and so in some cases, one IJ would stop the Clock (or refuse to start it) in a situation where another IJ would do the opposite. Also, the Clock sometimes stops due to administrative error. Correcting these problems or re-starting the Clock is a real hassle, and some people who are eligible for EADs do not receive them.

Over the last few years, we have seen some improvements in the operation of the Asylum Clock, and it has become less common for the Clock to stop. One particular improvement at the Asylum Office was that moving the case to a new jurisdiction would not cause the Clock to stop--that way, if a person moved within 180 days of filing for asylum, she could still receive her EAD. But that policy has now been reversed, at least according to the notes I received from a recent meeting at the Arlington Asylum Office--

Please note that for the purpose of the 180-day Asylum employment authorization document (EAD) clock, a request to transfer a case to a new asylum office or interview location (including when the transfer is based on a new address) is considered a delay requested or caused by the applicant. This transfer will cause the EAD clock to stop. The 180-day Asylum EAD clock is resumed once the new asylum office transfers in the applicant’s case.

Given the new last-in, first-out policy, perhaps the change makes sense from the Asylum Office's point of view, but asylum seekers will now need to be more cautious about moving. The bottom line is this: If you move and your case is transferred to a different Asylum Office, the Clock will stop. For how long it will stop is unclear. But since the Clock is notorious for stopping easily and only re-starting with difficultly, it seems important for affirmative asylum seekers to avoid moving after they file for asylum.

Once you reach 180 days on the Clock, moving has no effect, but to be extra-safe, I am now advising my clients not to move until they actually receive the EAD card. Of course, if you move, and your case remains at the same Asylum Office, there should be no effect. You can check whether moving will cause your case to be transferred to a new office by visiting the Asylum Office Locator and entering your old and new zip codes.

Another development to discuss is the recent Attorney General memo that rescinds a number of prior memos. There have been rumors that the purpose of this memo is to prevent asylum seekers from obtaining an EAD while their cases are pending. The memo itself does not end EADs for asylum seekers, but whether this memo is a precursor to such a move, I do not know. The government seems to have the authority to end EADs for asylum seekers (the statute says, "An applicant for asylum is not entitled to employment authorization, but such authorization may be provided under regulation by the Attorney General"). But given that the new EAD application form allows for work permits for people with pending asylum cases, it seems unlikely that the government will end EADs for such people, at least in the near term.

Finally, there is a new EAD application, form I-765. I will write more on this another time, but one major change is that asylum applicants must indicate whether they have been arrested for a crime. Many asylum seekers have been arrested for political reasons, as opposed to crimes, so what should they do? The I-765 instructions state that the applicant must list all arrests and convictions, which seems broader than the question actually listed on the form itself (which refers only to arrests for crimes). At this stage, I think it is safer to be over-inclusive. For our clients, if they have been arrested for any reason, even for a political reason, we will reveal that on the form and provide information about it. If there are no records of the arrest, which there often are not, we will include an affidavit from the client about what happened. Whether this will satisfy USCIS, I do not know. But until we learn more, this is the approach we will take.

So I suppose the good news is that asylum seekers are still eligible to obtain work authorization. They do need to be careful about moving before they receive the EAD card, though. When we know more about the new EAD form, or if there are changes to the process, I will try to post an update here.